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Law and the Inner Self: Remembering and Forgetting

The core aim of our project is to track and interpret the significance of legal developments as they pertain to the idea of the inner self. What do such legal developments tell us about the evolution and nature of the idea of the inner self?

In the project's first publication, PI Patrick O'Callaghan examines what we generally consider to be core aspects of the inner self: our capacities to remember and to forget. The paper, published in the journal Law and Humanities, argues that there tends to be a binary distinction between remembering and forgetting in legal discourse, the former understood as good and the latter bad. However, remembering and forgetting cannot be easily disentangled and once we look past this simplistic binary distinction, we see that law forgets, or law makes space for forgetting, in ways that cannot be described as negative or destructive. One such example is the right to be forgotten in data protection law.

Drawing inspiration from Dante's classic work, The Divine Comedy, amongst other sources, the paper argues that forgetting should not just be understood as the opposite of remembering. Rather, in certain contexts, forgetting can take the form of enlightened remembering: a deliberate choice to think differently about the past, an attempt to remember it in more positive or constructive ways.

The right to be forgotten makes space for both types of forgetting. Even if forgetting as not remembering does not occur in the individual case, the right to be forgotten creates legally induced breathing space for that individual to engage in enlightened remembering, to think differently about her past and to move on from it. So understood, we can argue that the right to be forgotten places value on the idea of the inner self, seeking to secure the integrity of it. Drawing on Reiman, we can say that it provides a signal to both the person invoking the right and the community that this person’s existence is her own.

Against this background, the paper then tentatively explores whether there should also be a 'right to forget' as a corollary to the right to be forgotten. This suggestion may not be as strange as it first sounds since:

If forgetting is part of the essence of what it means to be human, then it surely follows that restricting the breathing space for forgetting – whether that is forgetting as not remembering or forgetting as enlightened remembering – may amount to an affront to human dignity or personhood.

Of course, complex legal, political and moral questions emerge in this context. However, as the paper emphasises:

at the very least we can say that in shifting our perspective, in looking beyond the binary distinction that says remembering is always good and forgetting is bad, we begin to see other legal and political possibilities.

The paper is available here as an open access publication.

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